Kerr and Repatriation Commission - [2000] AATA 773

DECISION AND REASONS FOR DECISION [2000] AATA 773

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/148

GENERAL ADMINSTRATIVE DIVISION        )
           Re      KERRY KERR
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell

Date1 September 2000
PlaceSydney

Decision      (a)      The decisions under review are set aside; (b)    The decisions are substituted as per paragraph 62 of these Reasons; and (c) The matter is remitted to the Respondent for assessment and pension calculation.
  [Sgd] Dr J D Campbell
   Member

CATCHWORDS
Veterans' Entitlements – operational and defence service – acute pancreatitis - alcohol abuse – faulty liver – hypertension – chronic anxiety state with depression – acceptance/non acceptance of claimers disabilities
Veteran's Entitlements Act 1986 sections 120, 120A and 120B
Repatriation Commission v Deledio (1998) 83 FCR 82
Thompson v Repatriation Commission [2000] FCA 939

REASONS FOR DECISION

1 September 2000 Dr J D Campbell

Mr Kerry Kerr ("the Applicant") in this matter seeks a review of two decisions of the Repatriation Commission ("the Respondent") dated 6 August 1997 and 27 August 1997. In the first decision the Respondent declined the Applicant's claim for chronic anxiety state with depression. In the second decision the Respondent declined the Applicant's claim for acute pancreatitis, fatty liver and hypertension. Both decisions were subject to a review by the Veterans' Review Board, which in a decision dated 15 December 1998 affirmed both decisions under review.

A hearing was held before the Tribunal on 28 January 2000, at which the Applicant gave evidence. The Applicant was represented by Mr Dawson, a solicitor. The Respondent was represented by Ms Doggett, an advocate from the Department of Veterans' Affairs. Dr Lewin, a psychiatrist, gave oral evidence before the Tribunal. Written closing submissions were received on behalf of the Applicant on 7 February 2000 and on behalf of the Respondent on 18 April 2000. No further submissions in reply were received from the Applicant.

The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1 – 32 pages 1 - 155
Medical Report of Dr Keshava dated 8 July 1999         Exhibit A1
Two letters from Mr G Maier dated 23 October 1999 and 28 October 1999 Exhibit A2
CT Report from Dr Sachinwalla dated 16 December 1999     Exhibit A3
Medical Report of Dr Lewin dated 14 July 1999           Exhibit R1
Report of Associate Professor Grey dated 4 January 2000     Exhibit R2
Clinical Notes of Dr Malouf re Applicant Exhibit R3
Clinical Notes from Sutherland Hospital re Applicant    Exhibit R4
Clinical notes from Shell Occupational Health Centre and Dr Malouf re Applicant dated 23 September 1999     Exhibit R5
Medical Service Records re Philip John Rapinett         Exhibit R6

ISSUES:

The relevant issues to be decided are
(a)      whether the Applicant satisfies the relevant Statement of Principles ("SOPs") in relation to:
(i)        generalised anxiety disorder;
(ii)       depressive disorder;
(iii)      alcohol abuse;
(iv)      pancreatitis;
(v)       hypertension;
(b)      whether the Applicant's fatty liver is alcohol caused, there being no SOPs for fatty liver.

LEGISLATION:

The relevant legislation is the Veterans' Entitlements Act 1986 ("the Act") and in particular subsections 120(1), 120(3), 120(4), 120A and 120B and relevant SOPs for hypertension, generalised anxiety disorder, depressive disorder, psychoactive substance abuse or dependence and acute pancreatitis.
STANDARD OF PROOF:
The standard of proof for matters arising out of the period of operational service between 16 March 1971 and 11 October 1971 is that of a reasonable hypothesis as per subsections 120(1), 120(3) and 120A of the Act.
The standard of proof for matters arising out of the period of eligible service between 7 December 1972 and 30 July 1974 is that of reasonable satisfaction as per subsections 120(4) and 120B of the Act.
AGREED MATTERS:
It was agreed between the parties that the earliest date(s) of effect if the Applicant is successful in his claim are:
(a)      chronic anxiety state with depression - 2 September 1996;
(b)      acute pancreatitis, fatty liver, hypertension and substance abuse -
           11 January 1997.
It was further agreed between the parties that the Tribunal would decide on the appropriate diagnosis and whether or not the nominated condition was accepted or declined, with the matter being remitted to the Respondent for assessment and pension calculation where appropriate.
BACKGROUND:
On 2 December 1996 the Applicant lodged a claim nominating his disabilities as anxiety and back problems, the former disability arising from a traumatic event in South Vietnam and the latter from a motor vehicle accident (T6). The claim for chronic anxiety state with depression was refused by the Respondent on 6 August 1997 (T13).
On 11 May 1997 the Applicant lodged a claim nominating his disabilities as pancreas problems, liver dysfunction, haemorrhoids and hypertension, all being associated with excessive alcohol consumption (T8). The Applicant's claim for acute pancreatitis, fatty liver and hypertension were refused by the Respondent on 27 August 1997 (T18). The claim for haemorrhoids was accepted by the Respondent (T18).
The Applicant appealed these two decisions and on 15 December 1998 the Veterans Review Board affirmed the decisions that chronic anxiety state with depression, acute pancreatitis, fatty liver and hypertension were neither war-caused or defence caused.
EVIDENCE - APPLICANT:
The Applicant told the Tribunal that he left school at age 15 and after two years in the merchant navy joined the RAN at age 17 in 1965. After recruit training, The Applicant stated he spent 12 months on general duties aboard ships, before commencing in boiler rooms where he remained until hearing the navy in 1974.
The Applicant described his alcohol consumption in the following manner:
·No alcohol prior to service;
·1 – 2 cans a day after joining the navy;
·4 – 6 cans a day in the period 1965 - 70;
·8 cans a day in the period 1970 – 74.

As a leading hand on the mess deck he had access to the occasional beer when issued, and when they were off the gun line and on rest and recreation in Subic Bay, Hong Kong or Cebu he was drunk all the time. When he returned to Australia after his service in Vietnam, he noticed that his drinking had increased and when undertaking the petty officers course at HMAS Cerebrus he drank as much as he could every night for three months, except on night duty once a fortnight, whence he abstained.
On posting to IMCE (Military Correction Establishment) as a prison guard from his parent unit HMAS Penguin, his drinking continued, particularly as he was on shift work and he use to enjoy 4 – 5 schooners of beer with his father, a publican in Liverpool, before and after shifts.
On his final ship posting, HMAS Hobart, the Applicant stated that he would drink as much as he could get both on and off the ship.

After leaving the Navy in 1974, the Applicant stated that he joined his father in the hotel industry and continued to consume considerable quantities of beer, scotch and wine. In 1978 the Applicant stated that he joined Shell Refinery as a plant operator and that he continued to drink, although he knew it to be dangerous to both his own health and through his actions to the health of others. Over time it became his habit to have twelve cans before work and he further developed the habit of binge drinking for three days every two to three weeks, during which he would consume 24 cans over 12 hours plus scotch and wine before becoming ill. His last such episode was prior to Christmas and since then to the day of hearing he has consumed 3 slabs of beer and scotch. The Applicant stated that often he has been unable to attend work because of alcohol, and that after 22 years with Shell he has only six days sick leave left.
On posting to Thailand with Shell in early 1995, the Applicant stated that he drank continuously, using beer to overcome the conditions and that this was a continuous behaviour pattern. The Applicant admitted that he had not always been open about his drinking problems, giving different answers in an attempt to hide his problem from his employers. In particular the Applicant stated that if he had disclosed his alcohol problem at the time of his illness in Thailand it would have finished his career with Shell. Accordingly he denied he had a problem at this time and continued to deny it when he was repatriated to Australia. In 1996 the Applicant stated that the Company Medical Officer suggested he do something about his drinking and in June/July 1999, the Applicant stated that he told the Company Medical Officer that he was an alcoholic.
The Applicant stated that it is his practice to buy alcohol to drink at home and each week he would spend $100 or more on 2 slabs of beer, scotch, port, and wine. Further he always carries a flask of scotch, never drinks at work and usually fills his flask every one to two weeks.
In response to questions asked in cross examination, the Applicant confirmed his service alcohol history as described earlier, and further commented that he had experienced ongoing difficulties with weight control. His weight has varied generally between 92 and 108 kilograms, but during his Thailand experience, his weight decreased from 116 kilograms to 85 kilograms. The Applicant considered that his weight problems were associated with an unhealthy lifestyle of overeating and insufficient exercise during his navy service. The Applicant acknowledged that his local doctor, Dr Malouf, had warned him about the dangers of his drinking. Even so, the Applicant stated that he had attended work drunk on occasions (over the last twelve months, one day a month), and that he had not been subject to disciplinary action at work because of his drinking (no policy of work place breathtesting) and that he had never been charged with a drug or alcohol offence.
In further matters, the Applicant stated that he works around the house, in his garden but does not go out much to hotels or clubs, nor does he play golf, bowls or read. He has been to the cinema twice in ten years. With his wife, he stated he visited his son in Queensland over the Christmas period, but on New Year's Eve when on his third six pack, he found that he had drunk too much he became aggressive and retreated to bed. He stated that he and his wife returned home early on 7 January 2000. The Applicant described his father as a harsh man, who had a long and varied career in the hotel and club industry. He admitted to having had trouble sleeping for about 25 years; difficulty in cutting down on alcohol intake; that he experienced difficulty in being in closed spaces because of his experiences in the boiler room, experiences with which he had shared only with his father; that he was happy to get off the ship and that he drank with no conscious thought; that he had been able to control his drinking over the last few years and that his only disciplinary experiences had been for a minor misdemeanour when posted to IMCE at Holsworthy and involvement in a motor vehicle accident as a passenger, when a driver was charged with an alcohol offence.
The Applicant described two incidents to the Tribunal while aboard HMAS Brisbane during operational service. The first incident occurred when he was on watch during May/June 1971. While undertaking his duties in the boiler room a steam trap blew, trapping him in a corner. He could hear but not see the steam, the steam line was isolated by the Chief Petty Officer after what seemed a long time (3-5 minutes). He was relieved from the watch. Following this event the Applicant described that he was very nervous and could not do his duties in the boiler room and was tasked in engineer stores. When on the gun line, he did return to the boiler room for four hours a day once every seven days. He described the incident as having a major impact on his life, and since that event he has been unable to tolerate close spaces and thinking about it upsets him. The particular event has affected the way he works, for example when he does inspection work, he delegates the task of inspecting small spaces to others. At this point in time the Applicant stated that, while still doing shift work, he does minimal outside work. On his ten days rotation off work he spends much time on his computer and drinking much more.

21.The second incident occurred when a sailor, while the ship was on the gun line, jumped overboard. The sailor was rescued and indicated that his attempted suicide was bought about by his inability to handle navy life and the incessant name-calling related to his ethnic origin on the mess deck, for which the Applicant was responsible. The Applicant stated that he had the riot act read to him by his seniors, who stated that he should have seen the sailor was unstable and reported it to his seniors. The Applicant stated that initially he was surprised by the events and their consequences, but since that time has thought much about the event and his responsibilities and would appreciate an opportunity for reconciliation with the sailor concerned.

In relation to his history of salt tablet consumption the Applicant described his recollections when working in the boiler rooms on the various ships as follows:
HMAS Vendetta (1968)      couple each week;
HMAS Kembla  no tablets;
HMAS Brisbane                  in Vietnam waters, salt tablets issued 4 – 5 tablets an hour washed down with lime drink mixture;
On shore postings              no salt tablets.

The Applicant indicated that he was never warned about taking too many. He continued to take them when aboard ships. He was told he had high blood pressure when in the Navy (1973). He received no treatment for hypertension until it was commenced by Dr Spillane in 1980.

In relation to his psychiatric condition the Applicant stated that he would become aggressive with both his wife and work acquaintances; that he was aggressive on the road; that both children had left home because of him, but that he gets on better with them now. He stated that he had two good ex-Navy friends, one of whom died last year.
The Applicant stated that he had an episode of renal colic in 1994.
MEDICAL EVIDENCE:
On his entry medical examination on 19 July 1965, the Applicant detailed a history of an abscess in the right ear at the age of five, nail biting and dysentery. Examinations were normal with blood pressure recorded at 130/65 (T3, pages 18 – 21). At discharge medical examination on 26 July 1974, the Applicant detailed hearing loss in his right ear and neck pains as a result of a motor vehicle accident in 1972. Blood pressure was recorded as 160/90 (T3, pages 13-16).
In a medical report by a departmental officer on 20 August 1974, the Applicant is recorded as describing his alcohol consumption prior to enlistment as one glass of beer daily, increasing during service, with one large can of beer on ship and some five seven fluid ounce glasses of beer on shore. Further his blood pressure was recorded as 170/105 settling to 170/90. He was considered to be overweight and a diagnosis of perceptive deafness in the right ear was made (T4).
In a medical report dated 31 January 1997, Dr Keshava, a consultant psychiatrist detailed the Applicant's history of illness as follows:
HISTORY OF ILLNESS: He stated that, 'he has a short fuse and he flies off the handle easily'. Trivial things upset him and he loses his temper. He was becoming physically aggressive in the past and he gets abusive at times. He argues with his wife and his children have left home because of his aggressive behaviour. He said that, he isolates himself at work to avoid confrontation with others. He claimed that, he had regular fights with customers when he was in hotel business and he had broken his nose several times in the past. Infact, his mother had to ask him to leave the business because of his aggressive behaviour. He cannot mix with people and he can only relate to few of his navy friends. He has virtually no social life.
SLEEP: His sleep is disturbed. He remarked that, he has not slept properly for the past 20 years. He gets drunk to go off to sleep but wakes up 6 or 7 times at night. He has recurrent dreams of being trapped in a boiler room and he cannot escape. He invariably wakes up frightened and sweating profusely. Apparently he throws his arms around and he has hit his wife during his sleep. He takes a long time to back to sleep when once he is woken up, and on some nights he walks around at night in the house. He relives his past experiences regularly. (T7, page 38)

A result of his examination Dr Keshava concluded:
OPINION: Mr. Kerr suffers from chronic anxiety state with depression and alcohol dependence. He has low frustration tolerance and he loses his temper easily. He was becoming physically aggressive in the past and claimed to have broken his nose and he had surgery on his nose. He gets very depressed and isolates himself a lot. Even his son and daughter have moved out of the house because of his aggressive behaviour. His sleep is disturbed and he has difficulty staying asleep. He has recurrent dreams of being trapped in a boiler room in the ship and he wakes up frightened and sweating profusely. He relives his past experiences regularly. He has a long history of alcohol dependence and he suffers from alcohol liver disease and pancreatitis. His short term memory is impaired and he admitted to having alcoholic blackouts. He still drinks heavily and he has no insight into his alcohol problems. He also suffers from hypertension, impaired hearing and tinnitus. His blood pressure was 170/100mm of Hg at the time of assessment and he was on Coversyl tablets. His prognosis is poor and his psychiatric impairment rating according to the 4th edition of GARP is 45. (T7, page 39)
In further medical reports dated 29 August 1997 (T19, page 73), 19 March 1998 (T24, page 80), Dr Keshava noted the Applicants continuous symptomatology and issues of apparent causation and in his report of 8 July 1999, Dr Keshava, confirmed his earlier opinion with the following comments:
Mr. Kerr's anxiety symptoms started following his traumatic experiences on HMAS Brisbane during his operational service in Vietnam. He has been suffering from chronic anxiety state ever since and he has used alcohol to allay his anxiety. His excessive alcohol intake has caused alcohol liver disease and pancreatitis. He also suffers from hypertension and continues to take Coversyl 4mg daily. He lacks insight into his alcohol problem. I have recommenced him on Aropax-20 1 daily and I will review him in a month (Exhibit A1).

In a medical report dated 14 July 1999, Dr Lewin, a consultant psychiatrist, made the following summary of his diagnosis and opinion:
Mr Kerry Kerr is a 51 year old married father of two. His children are no longer dependant upon him. Mr and Mrs Kerr live in the Northern Suburbs and Mr Kerr is working on a full-time basis as a Refinery Operator for the Shell company at Clyde.
Mr Kerr served in the Royal Australian Navy between the ages of 17 and 26 years. He has worked for Shell for most of the intervening period. Mr Kerr was not involved in combat at any stage. He attributes his difficulties to his emotional reaction to the attempted suicide of Mr Rappinet, a Shipmate under his Supervision. He also refers to "a bit of a problem in the boiler room". In particular Mr Kerr refers to feelings of anxiety he experienced when trapped in the boiler room at a time of what later turned out to be a relatively minor incident. He was mindful of the potentially catastrophic consequences of a more severe accident involving high pressure steam.
Mr Kerr described anxiety symptoms beginning with the boiler room incident, but his history is consistent with a long term history of anxiety symptoms beginning at least in his teenage years at school. He described typical ongoing anxiety symptoms which fluctuated in intensity. His symptoms have included anticipatory anxiety, bodily symptoms of arousal and mild agoraphobic symptoms. There was no history of panic.
Mr Kerr also described a history of problem drinking. I was unsure about the reliability of his history for reasons which are laid out above. It was noted that his father was alcoholic. Mr Kerr appeared to abuse alcohol to control symptoms of apprehension. Features of alcohol dependence were not prominent. It is possible that pancreatitis results from drinking, but the gastroenterologist did not find any evidence of alcohol related liver disease. The single episode of acute pancreatitis was described as idiopathic. There is considerable doubt about whether this episode of pancreatitis is related to his drinking at all.
It was clear that Mr Kerr experiences a period of particular emotional distress around the time of the episode of pancreatitis. His wife's Stomach Cancer was diagnosed at this time and he felt that "everything was falling apart".
Mr Kerr has a low grade Chronic Anxiety Disorder which is characterised by symptoms of bodily arousal, Phobic Avoidance and some Post Traumatic Anxiety Features. He is not clinically depressed. On the basis of the history, it appears very likely that this anxiety Disorder has been present since his teenage years. It is likely that the incident in the boiler room led to some transient increase in the intensity of anxiety symptoms in a person with an already established vulnerability. I think it unlikely that the incident in the boiler room or the incident involving the attempted suicide by a shipmate, gave rise to any permanent worsening of his symptoms. I do not relate Mr Kerr's drinking problem to these episodes either. There appears to have been a definite increase in the intensity of his symptoms associated with his wife's life threatening illness.
It is my opinion that Mr Kerr is fit to work at the present time. His current symptoms are mild in intensity. His main problem is his drinking problem.
It is my opinion that there is no current psychiatric illness related to his period of Military Service. You requested my evaluation of his case in accordance with the GARP V Guide. I concluded that there was no psychiatric impairment. His impairment under the GARP V System is zero. (Exhibit R1)

The Applicant in completing an alcohol questionnaire on 9 April 1997 for the Respondent stated that he started drinking during service at the rate of one to two cans of beer per day and that this increased gradually during the period 1965 to 1970 to an average of four to six cans of beer per day. From 1971 to 1974 the Applicant stated he was drinking 8 cans of beer per day and that from 1975 his alcohol consumption increased to six to eight schooners of beer plus two to three nips of scotch per day. There were also occasions on which he would binge drink (T10, pages 48-49). Dr Keshava recorded a similar history of alcohol consumption although not as detailed as to particular quantities (Exhibit A1).
The clinical notes from Sutherland Hospital detail the Applicants history of acute pancreatitis in Thailand in June 1995, his return to Australia in July 1995, his visitation to his general practitioner at Port Stephens, his referral to Dr Curran, a consultant physician on 11 August 1995 and his admission to Sutherland Hospital on 21 August 1995. During his admission examination at Sutherland Hospital the Applicant is recorded as drinking 2 –3 cans of beer per day. Following investigation, the Applicant was found to have chronic pancreatitis, a fistula from the pancreatic head to the duodenal wall, anaemia, splenomegaly and a fatty liver (Exhibit R4).
Examination of the medical notes from the Shell Occupational Health Centre on 1 July 1994 reveal an episode of renal colic in May 1994, as well as raised blood pressure (Exhibit R5, page 2); a recording in relation to alcohol as 'can binge' on 22 October 1993 (R5, page 5); a record of two or more alcoholic drinks per day on 30 April 1993 (R5, page 13); 'liver problems? cause' on 13 June 1991 (R5, page 14); 3 alcoholic drinks per night while in Thailand (R5, page 37); strongly denied excessive alcohol intake in Thailand (R5, page 63).
On 6 August 1997 Dr Gillespie, a consultant physician, reported that the Applicant had acute pancreatitis, which to all extent and purposes had settled and a fatty liver, which could be a combination of diet and alcohol (T16, page 63). A medical report by Professor Doe, a consultant gastroenterologist, on 27 October 1995 again confirmed that the cause of the pancreatitis was idiopathic in the absence of gall stones and a history of heavy alcohol intake (T5, page 30).
In oral evidence before the Tribunal, Dr Lewin confirmed his written opinion and stated that in relation to the use of alcohol, he considered that the Applicant was evasive in recounting his history of daily drinking and his use of alcohol. In so stating, Dr Lewin considered that the Applicant was playing down his use of alcohol, but more importantly it seemed that the Applicant was guiding him though a prepared script.
In relation to the issue of the anxiety state, Dr Lewin considered that the anxiety state may have had its foundation in the Applicant's childhood, for in Dr Lewin's opinion there were symptoms of social anxiety at that time. These included the relationship with his father; trying to match his father, who was a heavy drinker; his fear of criticism and his avoidance of going in front of the class.
Dr Lewin also pointed to the inconsistency in the medical reports concerning the issue of alcohol consumption and what the Applicant stated. Dr Lewin confirmed that he had not put this inconsistency to the Applicant. Further Dr Lewin stated that he was unable to discover any clear pattern of depressive symptomatology and certainly no physical evidence of such.
OTHER EVIDENCE:
In written statements made on 28 October 1999, Mr Maier, an ex-petty officer colleague of the Applicant confirmed that a boiler room incident did occur on HMAS Brisbane off the coast of Vietnam in 1971 and that if did involve the Applicant and that the Applicant was relieved of his watch because he was in such a bad state (Exhibit A2 ).
The medical service records of Mr Rapinett indicate that he did leap from HMAS Brisbane on 19 May 1971, while the ship was in Vietnamese waters. In an interview on admission to BMH Hong Kong, Mr Rapinett claimed "he is the victim of poor taste racialist comments and jibes…In particular he accuses the Chief Stocker of prejudice…" (Exhibit R6).
SUBMISSIONS:
Mr Dawson, Solicitor for the Applicant, in relying upon the reports of Dr Keshava for diagnosis and causation and Dr Lewin for diagnosis, contended that the Applicant experienced two nominated incidents during his period of operational service, namely the boiler room event and the sailor overboard event, and that these two incidents constituted a stressful event for the purpose of paragraph 1(e) and 1(c), respectively, of the relevant SOPs, Instrument No 48 of 1994 and Instrument No 275 of 1995. Further it is the Applicant's contention that clause 4 of Instrument No 48 is satisfied and that both events meet the definitional requirements of "stressful event". Mr Dawson further submitted that Dr Lewin's opinion was of limited merit in so far as the foundations leading to the statement "a long history of anxiety symptoms beginning in at least his teenage school years", was built on the premise that the Applicant avoided appearing in front of his class as a teenager, and that there was no further attempt to explore the Applicant's nervousness in public.
In relation to the Applicant's depressive disorder it was submitted that the Applicant satisfies the relevant SOPs, Instrument No 58 of 1998. In so submitting the Applicant relies upon the reports of Dr Keshava.
In further submissions it was contended on the Applicant's behalf that his history of alcohol usage as detailed by the Applicant and by Dr Keshava were particularly related to increased intake during operational services. Any inconsistency in alcohol usage history by the Applicant during his Thailand episode in 1995 was put by Mr Dawson to be a response by an employee not wishing his employer to know that he had an alcohol problem. It is the Applicant's submission that he satisfies clauses 2(b)(1), (3), (4) and (7) of the relevant SOPs, Instrument No 76 of 1998.
On the issue of hypertension, it was submitted that the Applicant was normotensive on enlistment and hypertensive on discharge, and that he has remained on therapy for hypertension. It is submitted that the Applicant satisfies clauses 2(b), 5(b) and 5(c) of the relevant SOPs, Instrument No 64 of 1998 relating to his period of operational service and/or clauses 5(o) and 5(p) of Instrument No 65 of 1998 (relating to his period of eligible source), in that the Applicant's hypertension was aggravated by his eligible service.
On the issue of the single episode of pancreatitis, it is submitted on behalf of the Applicant that this was caused by the Applicant's alcohol usage and as such satisfies clause 5(b) of both relevant SOPs, Instrument No 45 of 1997 and Instrument No 46 of 1997.
In relation to the issue of the fatty liver, it was contended that this was caused and continues to be maintained by excessive alcohol consumption. The Applicant relies upon the report of Dr Gillespie to formulate the hypothesis in the absence of a particular SOPs on this issue.
RESPONDENT:
The Respondent, in agreeing with the Applicant that the Applicant suffers from an anxiety condition, agrees that the anxiety condition with some depressive symptomatology, was not caused or arose out of the Applicant's eligible service. Further, in relying on Dr Lewin's opinion, there were insufficient clinical features to support a diagnosis of a depressive disorder. Similarly there were other clinical features nominated by Dr Lewin to support his contention that there was a pre service anxiety condition present in the Applicant.
In considering the Applicant's drinking habits, the Respondent contends that there is considerable inconsistencies in the Applicant's history of alcohol use, and that there is evidence to suggest that such a history is one of convenience, exaggerated when necessary and understated when appropriate, as well as an apparent ability to control his drinking habits when necessary. Further it is the Respondent's contention that any increase in the Applicant's drinking while on "R and R" at Subic Bay was unrelated to any particular reason, and in particular to any of the alleged incidents.
On the issue of stresses, the Respondent, contends, that even if the boiler room incident did occur, it did not constitute a major stress, and at best would have constituted a transient increase in symptomatology arising from a pre-existing anxiety state. In relation to the second incident (sailor jumping overboard), the Respondent contends that this could not constitute a major stress for the Applicant, as the Applicant was not present at the time of jumping and was aware that the individual was wearing a life jacket and was recovered uninjured. With neither incident, in the Respondent's contention, the Applicant gave no evidence about any persisting mental revisiting of the event, as would indicate that there was substantial distress arising out of the incidents in question. In summary it is the Respondent's contention that for the very circumstances nominated, even if it is considered that the Applicant may have an alcohol problem, it is not related to his service.
The Respondent contends that whilst potential hypotheses had been raised by Dr Gillespie, it is not on point with the evidence. Further, in noting that the Applicant only nominates the possibility of a causal link, this is insufficient to relate it causally to his service.
In relation to the hypertension, the Respondent contends that there is no satisfactory chronological link to satisfy clause 5(c) of the SOPs, Instrument No 64 of 1998. Similarly the Respondent agreed that there is, in the absence of war-caused alcohol abuse or dependence, no mechanism available to relate the Applicants hypertension to either operational or eligible services. Further there was no evidence available to indicate that there had been aggravation (in terms of material worsening) of the hypertension during the period of eligible service and that other factors (weight and lifestyle) may well have been the cause of the hypertension.
The Respondent contends that the Applicant does not suffer from alcohol abuse or dependence causally related to service and hence such a claim relating to alcohol-induced pancreatitis must fail. In the Respondent's argument, even if a hypothesis was raised, and this is not pointed to by the evidence, the causal link between alcohol and pancreatitis has not been demonstrated as future drinking of alcohol has not resulted in further episodes of pancreatitis. In this regard, the Respondent relies upon the opinion of Dr Lewin.
CONSIDERATIONS AND FINDINGS:
This matter, in the Tribunal's view, is much dependent upon whether the history as provided by the Applicant on his service, his use of alcohol and the circumstances of his repatriation from Thailand are accepted. The Tribunal has listened and read from the Respondent's submission that there may be a question as to whether the two events described by the Applicant did occur. In this regard, the Tribunal, in noting the statement of Mr Maier and the medical records of Mr Rapinett, finds that the incident in the boiler room on HMAS Brisbane ("the boiler room incident") and the sailor jumping over board from HMAS Brisbane ("the sailor over board incident") did occur during a period of operational service in 1971. Further the Tribunal notes that the independent material, namely the two exhibits A2 and R6, provides information which is consistent with that related to the Tribunal by the Applicant.
In turning to the issue of the Applicant's history of alcohol use, the Tribunal notes the history as given to the Tribunal by the Applicant, the history as nominated by the Applicant to the Respondent (T10, pages 48-49), and the history of alcohol use as recorded by Dr Keshava. These have been detailed earlier in this decision. The Applicant told the Tribunal that on transfer to Thailand his consumption of alcohol, mainly beer, was a continuing issue, and that he drank to overcome the conditions. Further the Applicant stated that when he was admitted to hospital in Thailand with his acute abdominal condition in June 1995, he admitted to a minimal consumption of alcohol (3 cans of beer per day) and that he continued to maintain this quantity of consumption for the period in question with doctors on his medical evacuation to Australia. The Tribunal notes that the Applicant considered it necessary to provide this inconsistent information on the premise that full disclosure of his alcohol history would have finished his career opportunities with Shell, his employer.
The Tribunal, in considering the issue of alcohol use by the Applicant, is aware that Dr Lewin is of the opinion that the history as presented by the Applicant is contrived and believed the Applicant to have been guiding him through a prepared script. The Tribunal in considering all the evidence, including the Shell Occupational Health Centre notes (particular items referred to earlier in medical evidence) finds that, while there are obvious inconsistencies between what the Applicant has told the Tribunal and what he has told the doctors and his employer, the history of alcohol use by the Applicant as he has told to the Tribunal reflects the more probable history of alcohol usage. In arriving at such a finding the Tribunal has placed weight on the Applicant's history of alcohol use, the opinion of Dr Keshava and some particular references within Exhibit R5, namely 'can binge' in October 1993 and 'liver problems?' in June 1991. The Tribunal, in noting Dr Lewin's opinion, acknowledges that there is an issue concerning the Applicants inconsistent statements regarding his alcohol intake in Thailand and subsequent reiteration. The Tribunal does, however, accept the Applicant's reasons for withholding the information and finds, in the absence of any substantive evidence to the contrary, that the Applicant has a long history of alcohol abuse commencing in the early years of his service in the navy. It is the Tribunal's finding that this is ongoing and is characterised by periodic bursts of drinking with periods in-between of maintenance and, at times, minimal drinking. It would appear to the Tribunal that there has been an increased ability by the Applicant to control his drinking upon his return from Thailand.
The Tribunal, in considering the issue of whether the Applicant has a psychiatric disability notes the opinions of the two psychiatrists, namely Drs Keshava and Lewin. The Tribunal further notes that the two psychiatrists have concluded that the Applicant has a generalised anxiety disorder. The difference between the two is that Dr Keshava believed the Applicant to have depression and alcohol dependence as well as a generalised anxiety disorder, while Dr Lewin considers the Applicant to have a generalised anxiety disorder with some depressive symptomatology. The Tribunal in considering these two positions notes that there is little to distinguish the two diagnoses, and upon consideration of the Applicant's history, including his work history and the clinical features as described by both psychiatrists, finds that the diagnosis for the psychiatric disability is generalised anxiety disorder, with some depressive symptomatology.
The Tribunal further finds that the Applicant has the following medical conditions:
(a)Hypertension, which is controlled with anti-hypertension therapy;
(b)Acute pancreatitis. The evidence in the Tribunal's view is that there has been one episode of acute pancreatitis in 1995, which took some months to resolve. Episodic abdominal pain continues which may or may not be related to the pancreatitis condition and continued alcohol in take;
(c)Fatty Liver - Diagnosis indicated by computer logography and biochemical analysis of mild liver wall damage and confirmed by Dr Gillespie (gastroenterologist).
In summary the Tribunal finds that the following clinical conditions are found to exist or have existed in the Applicant:
(a)Generalised Anxiety Disorder;
(b)Alcohol Abuse;
(c)Hypertension;
(d)Acute Pancreatitis;
(e)Fatty Liver.
In turning to the issue of whether any of the above conditions have a causal connection with either operational or eligible service, the Tribunal in considering each of the nominated condition, turns to an evaluation of each one in terms of the steps nominated in Repatriation Commission v Deledio (1998) 83 FCR 82, while noting the findings in Thomson v Repatriation Commission [2000] FCA 939 relating to application of SOPs when one did not exist at time of decision by the Repatriation Commission.
(a)Generalised Anxiety Disorder
(i)The hypothesis in this matter in relation to this condition is that the Applicant's anxiety disorder was caused by the occurrence of two specific events while on operational service in 1971. The two specific events have been nominated as the boiler room incident and the sailor over board incident.
(ii)The SOPs in this issue are Instrument No 48 of 1994 as amended by Instrument No 275 of 1995 – generalised anxiety disorder. In this regard it is contended by the Applicant that the Applicant did experience two stressful events not more than two years before the clinical onset of a generalised anxiety disorder and he therefore satisfied para 1(b) of the SOPs, with the two incidents satisfying the definitional requirements of a stressful event. In essence the Tribunal finds that the hypothesis is capable of being reasonable.
(iii)In turning to the issue of whether the hypothesis raised, in the circumstances, is a reasonable one the Tribunal turns to a consideration of the circumstances of the Applicant's service and inquire as to whether the material points to the existence of the connection with operational service. The Tribunal has already found that the two incidents nominated as events did occur during a period of operational service. The Tribunal, in noting the Applicant's history of his response to those two events, and in particular the corroborated evidence that he was unable to continue with his watch, and his subsequent alteration of employment as a consequence of the boiler room incident, and his continuing avoidance of closed spaces to this day concludes that the boiler room incident was a stressful event. Further the Tribunal concludes that the sailor jumping over board incident created particular stress for the Applicant as detailed by the Applicant's history of the event and its continuance to this day, in terms of the Applicant wanting to meet and make amends with the sailor. The Tribunal in making the finding that the two events were stressful events is reinforced in its view by the opinions of Drs Keshava and Lewin, the latter being of the opinion that it was a stressful event, the consequences of which would be transient.
In further deliberation the Tribunal finds that the two stressful events were particular in creating the onset of a generalised anxiety disorder, as evidenced by the Applicant's description of the reaction to the events, his employment to other than limited working in the boiler room and his continuing pattern of behaviour thereafter in relation to avoidance of confined spaces, dreams of being trapped in confined spaces (boiler room) and reliving his past experiences.
As a consequence of the Tribunal's considerations, the Tribunal finds that the Applicant satisfies clause 1(b) of the SOPs, Instrument No 48 of 1994 as amended by Instrument No 275 of 1995, and therefore concludes that the hypothesis postulated is reasonable.
(iv)In the final analysis, the Tribunal concludes that there is no material which would allow the Tribunal to find that para 1(b) of SOPs Instrument No 48 of 1994 or the required relationship to service are not satisfied. Nor are there any other facts which are inconsistent with the nominated connection to war service. In conclusion, the Tribunal finds that generalised anxiety disorder is causally related to the Applicant's period of operational service
(b)      Alcohol Abuse
The Tribunal has already concluded that the Applicant has met the diagnostic criteria for alcohol abuse namely A(1), (2) and (4) pursuant to those nominated in DSM – IV and in the SOPs Instrument No 76 of 1998 (T30, page 112). In so finding the Tribunal has accepted a history of alcohol usage as described by the Applicant in his pre enlistment medical through to the present time. The Tribunal further notes that the hypothesis postulated is that the Applicant was suffering from a psychiatric disorder at the time of the clinical onset of alcohol above and/or experienced a severe stressor within two years prior of the clinical onset of the alcohol abuse.
In considering the material before the Tribunal, it is noted by the Tribunal the Applicant has had particular difficulties with meeting home and work obligations and that there has been a history of repeated alcohol use in situations in which it is physically hazardous. Further the Tribunal has already found that the Applicant has a generalised anxiety disorder which is casually related to his operational service. Similarly the Tribunal has found that the boiler room incident was an event which involved service injury (psychiatric disorder) and which caused the Applicant a period of intense fear and helplessness (namely a severe stressor). The Tribunal finds that the Applicant satisfies clauses 5(a) and (b) of SOPs, Instrument No 76 of 1998 (alcohol abuse), with the clinical onset of the alcohol abuse occurring after the incident, with an increase in consumption in Subic Bay when on "R and R", when unlimited alcohol was available and which, in the Tribunal's observation, may have led to the Applicant's episodic binge drinking pattern with a maintenance phase in-between. The Tribunal observes that this pattern of alcohol abuse continued.
As a consequence of the Tribunal's findings, a reasonable hypothesis is found to exist which causally connects the Applicant's alcohol abuse with his operational service. Further the Tribunal finds that there is no material in evidence which would allow the Tribunal to find that the facts that go to the creation of the hypothesis could be disproved beyond reasonable doubt or that other facts could be proved to exist which would disprove beyond reasonable doubt the facts that created the reasonable hypothesis.
(c)      Hypertension
In this issue the Tribunal has already established that hypertension does exist, in that the Applicant satisfies clause 2(b) of the SOPs, Instrument No 64 of 1998. The Tribunal has already noted that the Applicant was normotensive on enlistment and hypertensive on discharge and the hypothesis postulated by the Applicant is that the Applicant suffered from alcohol abuse at the time of the accurate determination of hypertension or alternatively the Applicant was digesting at least 12 grams of salt supplements per day for a period of at least six months immediately before the accurate determination of hypertension.
In relation to the first hypothesis, the Tribunal has already found that the Applicant has alcohol abuse causally related to his operational service. In view of the alcohol quantity consumed at the time of the diagnosis of the hypertension (50+ schooners of beer per week and 21 nips of scotch), the Tribunal concludes that clause 5(b) of SOPs, Instrument No 64 of 1998 is satisfied and that this hypothesis is reasonable. In relation to the alternative hypothesis, the Tribunal notes the evidence of the Applicant relating to salt ingestion while on ship and no ingestion while on shore postings. The Tribunal is not satisfied that the factual circumstances nominated within 5(c) are met in that the period of six months of continuous and added salt supplements prior to the accurate determination of hypertension do not appear to have been met in the circumstances as detailed before the Tribunal. Accordingly it is the Tribunal's finding that the alternate hypothesis, namely salt ingestion, is not reasonable.
Further the Tribunal is satisfied that there has been no material presented which would satisfy beyond reasonable doubt that the hypertension was not war-caused.
(d)      Acute Pancreatitis
The diagnosis of acute pancreatitis is not in dispute in this matter. The hypothesis nominated is that the Applicant alcohol abuse was the cause of the acute pancreatitis. In essence the Applicant's long history of prolonged and heavy alcohol consumption continued until the clinical onset of acute pancreatitis in June 1995.
The Tribunal has already concluded that the Applicant has alcohol abuse casually related to his operational service. The clinical onset of the Applicant's acute pancreatitis was associated with the Applicant's continued alcohol abuse and it is the Tribunal's finding that clause 5(b) of SOPs, Instrument No 46 of 1997 is satisfied and that the hypothesis is therefore reasonable.
The Tribunal has had its attention directed to the inconsistent reporting by the Applicant of his alcoholism at the time. In noting the Applicant's reason for the inconsistency as to quantities taken, the Tribunal concludes that such material does not disprove beyond reasonable doubt the facts upon which the reasonable hypothesis was formulated.
The Tribunal finds that the acute pancreatitis is casually related to his operational service.
(e)      Fatty Liver
The Tribunal notes that there is no SOPs for this pathological condition of the liver. The Tribunal does conclude that a hypothesis does exist which postulates that alcohol abuse can cause a fatty liver. This hypothesis is put forward in essence by Dr Gillespie, a gastroenterologist. The Tribunal finds that such a hypothesis is not fanciful nor is it contrary to scientific fact and accordingly finds the hypothesis reasonable, the Tribunal having already established that the Applicant does have the conditions of alcohol abuse and fatty liver. The Tribunal, upon consideration of all the material facts, finds that there is no material that would allow the Tribunal to find the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or alternatively to prove the existence of another fact beyond reasonable doubt which is inconsistent with the hypothesis.
It is the Tribunal's finding that the fatty liver condition is causally related to the Applicant's operational service.

In summary the Tribunal has found that the following conditions of the Applicant are casually related to his operational service:
- Generalised Anxiety Disorder
- Alcohol Abuse
- Hypertension
- Acute Pancreatitis
- Fatty Liver
The Tribunal also notes that the Applicant has satisfied the various SOPs as nominated and agreed by the parties. It is evident to the Tribunal that in some cases earlier instruments could have been more appropriately argued, but as the Applicant has been successful, nothing is necessarily gained or lost by either party in the circumstances.
The Tribunal would also wish to indicate that the Applicant is experiencing minimal if any incapacity for his condition of hypertension, acute pancreatitis and fatty liver at this time.
DETERMINATION:
The Tribunal determines that the decision under review is set aside and in subsection thereof determines that:
(a)The Applicant's conditions of:
(1)      Generalised Anxiety Disorder;
(2)      Alcohol Abuse;
(3)      Hypertension;
(4)      Acute Pancreatitis; and
(5)      Fatty Liver
are causally related to his period of operational service; and
(b)      that the date of effect is:
(1)      Generalised Anxiety Disorder – 2 September 1996;
(2)Acute Pancreatitis, Alcohol Abuse, Hypertension and Fatty Liver – January 1997; and
(c)the matter be remitted to the Respondent for assessment and pension calculation.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of:
Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  28 January 2000
Date of Decision  1 September 2000
Solicitor for the Applicant         Neale Dawson
Advocate for the Respondent Mrs Melinda Doggett